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Pre-Answer Dismissal for Defendant Physician Following a Traverse Hearing
In November of 2013, Kari A. Merolesi and Amanda L. Tate were awarded a dismissal as to a physician for lack of personal jurisdiction, following a traverse hearing based upon defendant’s contention that service was not properly effectuated. Upon careful review of the affidavit of service of the Summons & Complaint, along with our procedural expertise in New York practice, our defense strategy was to serve a pre-answer motion to dismiss for lack of personal jurisdiction, specifically improper service. A Queens County Justice ordered a traverse hearing to further delve into the alleged service deficiencies raised by the defendant. Following a dynamic cross-examination of the process server, which resulted in pertinent concessions regarding the process server’s lack of due diligence and inability to properly adhere to the rules and regulations promulgated by the NYC Department of Consumer Affairs, it was clear that service of process had not been properly effectuated. Moreover, through testimony of the defendant doctor, we were able to distinguish between the provisions of actual place of business and a hollow office address that does not reach the threshold meaning of actual place of business under New York law. The traverse hearing was sustained and defendant’s motion to dismiss for lack of personal jurisdiction was granted. Plaintiff was unable to re-serve defendant due to the expiration of the statute of limitations.
